In the problem-riddled area of international surrogacy, women’s rights are often overlooked, downplayed, and simply ignored. Professor Pamela Laufer-Ukeles in her upcoming publication, The Disembodied Womb: Pregnancy, Informed Consent, and Surrogate Motherhood (“The Disembodied Womb”), addresses the medical and legal fields’ lack of appropriate measures for protecting rights of women during and after pregnancy.[i]
On October 27, 2017 the University of North Carolina School of Law’s International Law Journal was honored to host Professor Laufer-Ukeles, among others, as she presented her article’s arguments. Focused on the right of informed consent in the context of medical decisions during pregnancy, Professor Laufer-Ukeles’ article contains three sections. First, she addresses the legal status of “pregnancy”, or lack thereof.[ii] Second, she tackles informed consent, and its many complications in medical decision-making during pregnancy.[iii] Lastly, she applies this to international surrogate motherhood and how it is so often contracted away or overlooked.[iv]
Professor Laufer-Ukeles highlights two main issues with the legal status of pregnancy: its lack of distinction from motherhood and the complicated mixing of mother and fetal interests.[v] These are encompassed in the much larger problem of viewing women as “human incubators,” especially in a surrogacy context.[vi] Given U.S. constitutional standards (a la Roe v. Wade), pregnancy has been viewed in the light of abortion, becoming an awkward grey area where interests are mixed and with little recognition of rights outside of this light.[vii] Professor Laufer-Ukeles argues there should be a distinction between gestation and motherhood.[viii] She reasons the emotional and psychological effects of pregnancy have not been acknowledged.[ix] Instead, maternity support should be extended to include pregnancy, not just post-birth “motherhood.”[x] As well, she argues that fetal effects should not be criminalized, and although these interests must be recognized, the decision-making should rest with the gestational mother. [xi]When placed into the surrogacy context, these distinctions are necessary, as surrogate pregnancy is so divorced from motherhood.[xii]
The decision-making during pregnancy is no easy thing. There are serious medical choices to be made, increasingly coupled with doctor and state pressure.[xiii] Under “informed consent,” a patient must be made aware of the risks of any procedures, and any reasonable alternatives.[xiv] However, Professor Laufer-Ukeles argues that in a pregnancy setting, “informed consent” has become coercive.[xv] She provides examples of this coercion, ranging from the abortion process to threatened child abuse charges if a cesarean was not performed.[xvi] She suggests that independent counseling—separate from a doctor juggling mother and fetal interests—may mitigate this coercion, granting better autonomy.[xvii]
Finally, when viewed in the lens of surrogacy, the issues of pregnancy rights and informed consent are magnified a hundredfold. Professor Laufer-Ukeles notes that the surrogacy contract asks the surrogate mothers to acquiesce to any necessary medical procedures to protect the child.[xviii] Not only can this force a surrogate mother to undergo a procedure, the informed consent is not given contemporaneously, thus cannot be medically valid.[xix] But what if a surrogate mother breaches the contract anyway? Professor Laufer-Ukeles posits that there could be possible damages, but if informed consent cannot be legally contracted away, there is not a reason for the contract in the first place.[xx] Thus, we are left with a dilemma.
Professor Laufer-Ukeles suggests we need to end the disconnect between surrogate mothers and the eventual parents in order to fix some of these issues.[xxi] This may mean that surrogacy must involve one’s kin, or be domestic.[xxii] As well, legislatures must ensure informed consent cannot be waived.[xxiii] In sum, we should stop discounting the rights of the pregnant.
[i] Pamela Laufer-Ukeles, The Disembodied Womb: Pregnancy, Informed Consent, and Surrogate Motherhood, 43 N.C.J. Int’l L. (forthcoming 2018).
[ii] Id. at 1.
[iii] Id. at 1.
[iv] Id. at 1.
[v] Id. at 4-5.
[vi] See A.H.W. v. G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000)
[vii] Laufer-Ukeles, supra note 1, at 2.
[viii] Id. at 5.
[ix] Id. at 5.
[x] Id. at 5. See Shari Motro, Preglimony, 63 Stan. L. Rev. 647 (2011).
[xi] Laufer-Ukeles, supra note 1, at 6.
[xiii] Id. at 7.
[xiv] See Salgo v. Leland Stanford Jr. Univ. Bd. of Trs., 317 P.2d 170, 181 (Cal. Ct. App. 1957).
[xv] Laufer-Ukeles, supra note 1, at 8.
[xvi] Id. at 8, 11.
[xvii] Id. at 12.
[xviii] Id. at 14.
[xix] Id. at 19.
[xx] Id. at 19.
[xxi] Laufer-Ukeles, supra note 1, at 24.
[xxii] Id. at 25.
[xxiii] Id. at 24.